Introduction
Environmental deterioration is omnipresent, its urgency only increasing by the day.1 The European Union has responded to this crisis by placing the goal of environmental preservation at the very heart of all its policies, as enshrined in Article 11 of the Treaty on the Functioning of the European Union. One such case is the Rome II Regulation,2 which focuses on matters of private international law, namely the law applicable to non-contractual obligations. Following the Union’s commitment to sustainability on a wide socio-economic level,3 Article 7 of the Regulation introduces a novel approach regarding environmental liability in cases of transboundary pollution. Indeed, the provision enforces the ‘polluter pays’ principle by creating controlled unpredictability through the principle of ubiquity. This practice promotes the harmonisation of the various legal orders within the Union, something which transforms Article 7 from a simple, procedural rule of private international law, to a means of achieving one of the Union’s fundamental goals. Considering that the principle of ubiquity has re-entered public discourse in the wake of the European Parliament’s Draft Report on corporate due diligence and corporate accountability, which proposed the expansion of the principle of ubiquity,4 it would be interesting to examine the function of the only other provision in the Rome II Regulation based on the principle of ubiquity.
The discussion on Article 7 will begin with its examination in the context of Rome II and its differentiation from the general rule established by Article 4 of the Regulation. The piece shall proceed with the criticism that has been surrounding Article 7, particularly with respect to the unforeseeability it harbours. These arguments will then be rebutted through an examination of the provision’s strengths, after which the piece will focus on Article 7 as a tool for legal harmonisation. The piece shall close with an appraisal of the provision’s day-to-day application.
The mechanism establishing the applicable law under Article 7
Firstly, it is fundamental to analyse the origins of the Rome II Regulation in order to gain a better understanding of Article 7 itself. The origin of the Regulation traces back to the Treaty of Amsterdam, which allowed the European Community to strengthen the compatibility of the conflict of laws rules in the highly diverse legal orders of the Member States.5 Although this initiative aimed for a smoother operation of the internal market, it was met with negative reactions.6 Namely, there were some7 who claimed that a scheme on conflict of laws rules went beyond the Community’s competences. Despite those initial doubts, it was subsequently acknowledged that the Community was free to produce laws on private international law by virtue of the putative powers provided by Article 61 of the Treaty Establishing the European Community, which sought to consolidate judicial cooperation between the Member States.8
Article 7 of the Regulation in particular was subject to great controversy, with the European Parliament expressing multiple reservations; it is telling that the Regulation was only passed after a decision by the Conciliation Committee.9 In particular, the lack of a definition for environmental damage in the proposal for the Regulation granted national courts some freedom in interpreting this notion. It was believed that the introduction of such a crucial issue of substantive law, without providing a concise answer as to what exactly constitutes ‘environmental damage’, would only hinder legal certainty.10 Furthermore, the European Parliament considered that there was no need for a specific provision on environmental liability in the sense that such matters could fall under the Regulation’s general provisions, which in principle prioritised the law of the country where the damage occurs.11 Thus, it excluded Article 7 from its proposal during both the first and second reading.12
Article 7’s potential as a self-existing law of private international law was unlocked once its field of application was clearly defined. Although Directive 2004/35/CE had already established a definition of environmental damage for the purposes of Community law,13 the Regulation followed a different approach. More concisely, the Regulation acknowledges it as an injury not only on the natural capital as a public good, but also on private persons and property.14 Article 7 additionally covers ‘impairment of [the] function[s] performed by (…) [natural] resource[s] for the benefit of another natural resource or the public’,15 meaning that any consequence arising from a tort/delict16 on the aforementioned natural resources may be considered damage.17 Designed as an instrument of private international law, Article 7 highlights the effects environmental damage can inflict on private persons and goods in quite a wide sense, something which also serves the Union’s policy on environmental preservation, as will be explained below.
Before discussing Article 7’s mechanism, it is crucial to examine some key elements of the Regulation’s system. The Regulation is applicable to non-contractual obligations arising from civil or commercial matters.18 In their interpretation, the European Court of Justice have excluded from this notion ‘acta iure imperii’,19 which in this context could refer to the State’s compliance with its international obligations, such as the removal of a shipwreck in a public waterway,20 or even activities relating to the exercise of regulatory power,21 such as the issuing of administrative authorisations. It should also be noted that the Regulation dictates the applicable law for any case with an element of internationality brought before a national court of a Member State.22 By no means does it indicate the place of the proceedings, something which is stipulated by Regulation 1215/2012.23
The general rule of the Regulation is enshrined in Article 4, according to which the law applicable to a non-contractual obligation arising out of a tort or delict shall be that of the country where the damage occurs, or the lex loci damni.24 Article 4 proposes two alternatives if special circumstances are in place: firstly, as per Article 4(2), if the parties habitually live in the same country, then the dispute shall be resolved through the law of that State; secondly, Article 4(3) states that if the tort appears to have a manifestly stronger connection with a different forum, then this latter forum’s law should be applied.25 Such a connection could be established if elements pertaining to the tort have already been regulated in that same legal order, namely due to a prior relationship between the parties or a pre-existing contract.26
However, environmental liability follows a different rule; whereas Article 7 allows the application of the lex loci damni, it dismisses the other two options offered by Article 4.27 The alternatives presented by Articles 4(2) and 4(3) seek to bolster legal foreseeability by prioritising legal orders with which the dispute may already be associated.28 Where such connections already exist, the Regulation rejects the lex loci damni, as the place where the damage occurs does not appear as a strong enough factor to determine the applicable law.29 However, environmental deterioration is intrinsically connected with the territory where it appears. Even if Articles 4(2) and 4(3) ensured an appropriate remedy for victims of environmental damage, their application in this case would doctrinally clash with the Union’s commitment to environmental preservation because these provisions detach the claimant’s restitution from the land where the harm appeared.30 Such a detachment of the legal dispute from the land that was polluted would deprive the claim of its moral justification. Besides, Article 7 seeks to remedy not only the injury suffered by the claimant, but also the damage sustained by the environment,31 which is recognised as a common good of utmost importance within the Union’s environmental policy.32
Thus, Article 7 of the Regulation provides the person seeking compensation with the choice to base their claim on either of the two legal orders territorially connected with the damage; the lex loci damni or the law of the country where the delict occurred (lex loci delicti commissi).33 This distinction becomes quite important in cases of transboundary pollution, as environmental damage may easily spread beyond the borders of the country where the act of pollution took place.
The importance of the claimant’s choice of law in the context of Article 7
The conceptual foundation behind Article 7 is the principle of ubiquity.34 This principle, which appears in various civil law European legal orders,35 provides that the person seeking compensation shall select the applicable law among those with which the dispute in question could be connected; the lex loci damni or the lex loci delicti commissi.36 Arguably, the principle of ubiquity grants significant power to the claimant to alter the legal characteristics of the dispute, as it is up to them to determine which substantive rules are to be applied.
This liberty provided to the claimant covers all aspects of liability, including – but not limited to – whether liability is fault-based or strict and the kind of compensation that must be provided by the tortfeasor.37 In other words, Article 7 does not allow for the separation of the various issues arising from a dispute and subjecting each of them to a different substantive law.38 Nonetheless, it is possible that the victim of an event that has caused pollution in various countries opts for the lex loci damni to either ensure that no damage remains unrecompensed, or because the legal order where a specific injury occurred promises greater compensation. While the claimant, the pollutant and the polluting event in question remain the same, if each injury is examined under the law of the country where it appeared, the legal outcome regarding each issue may present variations.39 This mosaic effect illustrates not only the adaptability of the principle of ubiquity, but also its importance within the Article’s mechanism. By dividing multifaceted cases into individual damages and providing the claimant with the choice of law for each of them, the provision ensures that the polluter does not avoid the potentially higher sanctions imposed by the various legal orders.
The flexibility of Article 7 and the power it accords to the claimant is illuminated through a comparison with a stricter system of liability that regulates a specific area of environmental damage, namely nuclear damage. It is excluded from the scope of the Rome II Regulation and, accordingly, it does not fall under Article 7.40 Its initial inclusion in the Commission’s drafts notwithstanding, it was ultimately removed so as to not disrupt ‘the [important] economic and State interests at stake […] and the existing international scheme of nuclear liability’ already established by international legal instruments,41 according to which compensation claims arising from nuclear liability are to be dealt with in accordance with the lex loci delicti commissi.42 Keeping in mind that these treaties also dictate a system of strict liability,43 the need for maximised certainty with regards to nuclear liability becomes clear. Such an approach is justified by the sheer destructive force that the mismanagement of nuclear energy may cause. By putting in place a rigid system guaranteeing maximised legal certainty, the international conventions contribute to ‘the development of friendly relations among nations, irrespective of their differing constitutional and social systems’.44 Nonetheless, the European vision differs, as Union policies strive to bring prosperity on the basis of the integration of the different legal orders. The above demonstrates the extent to which the principle of ubiquity shapes the scope and use of Article 7, as well as its function as a catalyst for policy objectives of the Union.
Criticism on the uncertainty of Article 7’s choice of law mechanism
The legislative choice to provide the claimant with such a broad power in the context of Article 7 has received some backlash. Τhe piece shall now review the main arguments against the provision, which focus on its interpretation of the ‘polluter pays’ principle and the uncertainty it creates for the tortfeasor.
By ensuring that violations of the environment are not left unchecked or uncompensated, Article 7 seeks to bolster the ‘polluter pays’ principle.45 The latter is a central pillar of the Union’s environmental policy as enshrined in Article 191 of the Treaty on the Functioning of the European Union (TFEU).46 Part of its significance lies in its deterrent function through the threat of financial sanctions, something which is pivotal for environmental protection, especially with relation to the principles of prevention and precaution.47 That is to say, its aim is not so much to promote the claimant’s interests, but simply to safeguard the natural resources against potential violations.
However, it is supported that not only does the principle of ubiquity concede a disproportionate advantage to the claimant, but it is also an inadequate counter-incentive for pollution. By providing them with the choice of law, the provision permits the victim to opt for the most favourable law for their own interests,48 thus maximising their recovery.49 Yet, it is claimed that this augmentation of the rectification does little towards the goal of environmental protection, especially in cases of large-scale pollution.50 Namely, it may be more profitable for a large corporation to grant large compensation amounts rather than invest in the modernisation of its equipment in order to become more environmentally friendly.51
Article 7 is also criticised because it forsakes legal certainty, something which is unfair specifically for the tortfeasor.52 Namely, the effects of a tortfeasor’s conduct may constitute pollution in the legal order of a neighbouring State, while they would not be classified as such in the legal order of their operation.53 Despite their adherence to the legal standards of their country of operation, their activities could still be disrupted if the claimant files a claim against them on the basis of the lex loci damni.54 For instance, the Dutch legislation implementing the Waste Management Directive55 has established a higher level of protection than the one established on a Union level, something which significantly differentiates the Dutch framework from other legal orders.56 As such, operators are burdened with the obligation to be a priori familiarised with multiple legal orders – and even if they are, the unforeseeability of the applicant’s choice could encumber the preparation of their legal defence.57
Legal uncertainty as a means of promoting environmental preservation
The above arguments against Article 7 provide an excellent opportunity to discuss the provision’s strengths. In fact, it shall be demonstrated that the unpredictability created by Article 7 is not a fault, but rather a distinct strength.
Indeed, what has been perceived as unjust favouritism towards the victim of the damage is actually a method to promote public interest.58 From its inception, Article 7 was conceived as a specialised legal tool which could best answer the challenges of environmental law.59 As such, it is heavily influenced by the precautionary principle, whereby threats to natural capital should be neutralised before they even appear.60 By exposing entities conducting potentially harmful activities to the possibility of being sued under diverse legal regimes, Article 7 forces these entities to respect a variety of environmental standards. This means that even if they operate in a country providing a low level of environmental protection, they may potentially have to observe the higher standards adopted in a neighbouring State. In other words, the Rome II Regulation uses the claimant’s legitimate interests as a vehicle to mesh the European legal orders, thus achieving public policy objectives.61
Moreover, Article 7’s unpredictability serves to combat forum shopping by stripping the tortfeasor of an a priori knowledge of the applicable law. On the one hand, the polluter is discouraged from strategically operating in a State with a more lenient environmental policy, as they cannot be assured that this more lenient law will be applied in the case of pollution.62 On the other hand, once the violation appears, the tortfeasor cannot thread their way to the legal order which could minimise their liability.63 Likewise, it has been proven that a State’s adoption of a more rigid environmental legislative approach can encourage neighbouring countries to do so as well, given that they can extract ideas from the practice of a State with a higher level of protection.64 To put it differently, the inevitable communication between legal orders with varying levels of environmental protection through Article 7 has provided national legislators with the incentives to elevate the general level of environmental protection within the Union.
Environmental liability in Rome II and the merging of differing legal orders
To obtain a more comprehensive understanding of Article 7’s contribution in the formation of an integrated environmental framework in the EU, it would be beneficial to further discuss the methods through which Article 7 enmeshes different legal orders. Thus, the piece shall now study how practices such as administrative authorisations and safety standards may further blur the lines between different jurisdictions in the context of Article 7.
There are times where an operator’s activity follows an authorisation granted by a State institution on the basis of the lex loci damni, and yet it brings about pollution in a different State. In such a case, the competent court may proceed with a judicial review of the foreign act, following two steps: firstly, the verification of the validity of the foreign authorisation; secondly, the inspection of the degree to which the authorisation is applicable in the dispute under question.65 The deciding court, applying its domestic law,66 conducts a judicial review of the foreign act in order to ascertain whether the criteria of the foreign laws, under which the authorisation was granted, are compatible with the standards set out in the deciding court’s legal order.67 If it is validated that the foreign authorisation properly follows the rules set out in its legal order of origin and that the criteria on which it was adopted are similar to the ones followed by the law of the deciding court, the act may limit liability to the extent that the court decides so.68
A prominent answer to this question concentrates on the liability system of the legal order where the damage appears.69 That is to say that a foreign authorisation may only acquit the polluter if the law covering the dispute follows a fault-based liability system. It should be noted, however, that even in this scenario the authorisation bears no legal effects if the legal order it originates from has adopted a strict liability scheme.70 According to this method, if the tortfeasor was granted an authorisation in their country of origin but the claimant chooses the lex loci damni and the latter adopts a system of subjective liability, then the court could recognise reduced liability, leading to reduced compensation.71 This effect could go as far as to eliminate liability entirely, even to a dismissal of the claim.72 Thus, it could be said that, whichever the claimant’s choice of law may be, both jurisdictions proposed by Article 7 may come into play in a singular case. Through this unique fusion of the various European legal orders, Article 7 contributes towards the Union goals of legal harmonisation and judicial cooperation.
This inclination towards an interpretation of Union legislation that promotes the legal integration of the States also appears in various decisions issued by the European Court of Justice, with 2009’s Land Oberösterreich v ČEZ being a particularly pertinent example.73 Although the preliminary question concerned the Euratom Treaty and the ruling makes no explicit reference to the Rome II Regulation, the reasoning behind the decision analyses principles which also imbue the Regulation. ČEZ obtained an administrative authorisation by the Czech authorities to operate a nuclear plant in the Czech Republic, 60 kilometres from the Austrian border. Land Oberösterreich, an Austrian state, brought an action against ČEZ before an Austrian court concerning actual or potential nuisance emanating from its factory. Applying its domestic law, the Austrian court ruled that if a plant had received administrative authorisation to conduct certain activities which subsequently caused pollution, the person suffering the damage could only file a claim for damages against the owner of the plant, not a claim for injunction. However, the court specified that this was only true if the issuing authority was Austrian; given that ČEZ’s installation operated under a Czech authorisation, the company could additionally be subject to an injunction to prevent an actual or potential nuisance to neighbouring property. The CJEU declared that such a decision constituted a direct violation of the principle of non-discrimination on the grounds of nationality.74 The principle of non-discrimination, enshrined in Article 18 TFEU, constitutes a core value of the Union.75 This principle is a logical prerequisite for the principle of mutual recognition, which in turn constitutes the very foundation of the Rome II Regulation, whose primary objectives are legal harmonisation and judicial cooperation amongst Member States.76 The connection between the principle of mutual recognition and the principle of non-discrimination becomes apparent within the sui generis legal order of the Union, as they both lay the foundation for the smooth cooperation between Member States while also acknowledging their sovereignty.77
The discussion about the way in which environmental liability mixes elements from various jurisdictions in the context of the Rome II Regulation would be incomplete without a reference to Article 17 of the Regulation, stipulating that when ‘assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability’.78 It is notable that the provision’s wording provides great discretion to the competent court as to the degree to which foreign rules of conduct are to be taken into account. In any case, adherence to such rules may only be considered as a matter of fact, given that Article 17 introduces but a mere ‘evidentiary instruction’.79 Its importance is highlighted if a foreign administrative authorisation determines liability on the basis of intent and negligence, the existence of which may only be measured through a comparison with the conduct that a reasonable, law-abiding person would hypothetically exhibit in the same situation.80 As per Article 17, this behaviour can be evaluated by the rules of safety and conduct prescribed by the legal order where the damaging conduct appeared.81 It becomes apparent then, that even if Article 7 provides the claimant with the choice of law, provisions from third jurisdictions may still be taken into account.
The amalgamation of different laws through Article 7 raises the question of its success – or lack thereof. According to the findings of a Commission-funded study on the application of the Regulation across Member States, European experts have judged Article 7 to be a provision ‘adequately ensuring that the private interests of the victims coincide with the highest level of environmental protection’.82 Such has been its success in positively influencing private entities through the principle of ubiquity,83 that it has been consistently proposed that the principle be generally applied for matters of human rights.84 The extension of Article 7’s mechanism based on the principle of ubiquity to other cases of transnational claims is a credible indication of the provision’s long-term success.
Conclusion
Article 7 of the Rome II Regulation serves a unique role in actualising the Union’s environmental policy. While at first glance the principle of ubiquity and the unforeseeability it creates may seem to create a convoluted legal mechanism, it becomes clear they are apt tools for the invigoration of environmental law within the European Union. Indeed, Article 7’s integrating approach is an interesting case of the legitimate interests of a party in a private dispute that are transformed into a means of organically enforcing public interest as well as converging substantive rules of different jurisdictions. Furthermore, Article 7’s unifying approach to foreign environmental standards and administrative authorisations enriches not just the system of environmental liability within Rome II but also the system of judicial cooperation and the doctrine of mutual recognition in the Union as a whole. It is perhaps for these reasons that, notwithstanding the original negative reactions that were stirred by the introduction of Article 7, it maintains its relevance to this very day, even acting as an inspiration for the expansion of the principle of ubiquity.
[1] Hans Bruyninckx, ‘Summer 2022: Living In A State Of Multiple Crises’ (European Environment Agency, 6 December 2022) https://www.eea.europa.eu/ds_resolveuid/820522062571463389c3e302ef236b98 accessed 23 September 2022.
[2] Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
[3] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, art 11; European Economic and Social Committee Diversity Europe Group III, ‘Delivering on the Urgency of Climate Change: nowhere left to hide’ (22 September 2021) https://www.eesc.europa.eu/en/news-media/news/delivering-urgency-climate-change-nowhere-left-hide accessed 23 September 2022.
[4] Draft Report with recommendations to the Commission on corporate due diligence and corporate accountability [2020] 2020/2129(INL).
[5] Emmanuel Guinchard and Simone Lamont-Black, ‘Environmental Law — the Black Sheep in Rome Il’s Drive For Legal Certainty? Article 7 of Regulation (EC) No. 864/2007 on the Law Applicable to Non-Contractual Obligations in Context’ (2009) 11 Environmental Law Review 161, 162.
[6] European Parliament Legislative resolution on the Council common position with a view to the adoption of a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (‘Rome II’) [2006] C 244E/194; Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (‘Rome II’) [2003] COD 2003/0168 (‘Proposal’). See also European Union Committee of the House of Lords, The Rome II Regulation Report With Evidence (HL 2003-04, 66) 24-25.
[7] See Luis de Lima Pinheiro, ‘Choice Of Law On Non-Contractual Obligations Between Communitarization And Globalization – A First Assessment Of EC Rome II Regulation’ (2008) Rivista di diritto internazionale privato e processuale 44, 1.
[8] art 61: ‘In order to establish progressively an area of freedom, security and justice, the Council shall adopt […] measures in the field of judicial cooperation in civil matters as provided for in Article 65’, art. 65: ‘Measures in the field of judicial cooperation in civil matters having cross-border implications […] insofar as necessary for the proper functioning of the internal market, shall include: improving an simplifying: […] the recognition and enforcement of decisions in civil and commercial cases […] promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction’, Consolidated Version of the Treaty Establishing the European Community [2002] OJ C340/174, art. 61, 65; Lima Pinheiro (n 7) 2-3.
[9] With regards to the intervention of the Conciliation Committee, see: Procedure 2003/0168/COD COM (2003) 427: Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (‘ROME II’) (EURLex) <https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex%3A52003PC0427> accessed 9 February 2023.
[10] European Parliament’s Committee on Legal Affairs, ‘Report on the Proposal for a Regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations (‘Rome II’)’ (2005) https://www.europarl.europa.eu/doceo/document/A-6-2005-0211_EN.html accessed 23 September 2022.
[11] ibid; European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (‘ROME II’) (2005) COM (2003) 0427 (Legislative Resolution); European Parliament’s Committee on Legal Affairs, ‘Recommendation for second reading on the Council common position for adopting a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (‘ROME II’) (2006) COD 2003/0168, amendment 5 recital 19 <https://www.europarl.europa.eu/doceo/document/A-6-2006-0481_EN.html> accessed 14 October 2022 (Recommendation).
[12] Legislative Resolution (n 11); Recommendation (n 11).
[13] ‘‘Environmental damage’ means: (a) damage to protected species and natural habitats[…] (b) water damage […] (c) land damage’: Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56, art 2.
[14] Rome II Regulation recital 24.
[15] ibid.
[16] In practice, there seems to be no significant differentiation between the terms ‘tort’ and ‘delict’ other than the fact that they are used in different legal orders; ‘Delict’ (Thomson Reuters Practical Law, 2023) <https://uk.practicallaw.thomsonreuters.com/w-010-9374?originationContext=document&transitionType=DocumentItem&contextData=%28sc.Default%29&firstPage=true>> accessed 10 February 2023.
[17] Rome II Regulation art 2.
[18] Rome II Regulation art 1.
[19] Case C-29/76 LTU v Eurocontrol [1976] ECR 1541; Case C-814/79 Netherlands v Ruffer [1980] ECR 3807; Case C-292/05 Lechouritou and Others [2007] ECR I-1519.
[20] As in Case C-814/79 Netherlands v Ruffer.
[21] As in Case C-29/76 LTU v Eurocontrol.
[22] Francisco Garcimartín Alférez, ‘The Rome II Regulation: On the Way Towards a European Private International Law Code’ (May 2007) The European Legal Forum (E) 3-2007 I77, http://www.simons-law.com/library/pdf/d/688.pdf accessed 23 September 2022, I-78 – I-80.
[23] Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)[2012] OJ L351, recitals 4-7.
[24] Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) [2007] OJ L199/40, recital 18, art 4(1).
[25] Rome II Regulation art 4(2), 4(3).
[26] Rome II Regulation art 4(3).
[27] Rome II Regulation art 7.
[28] Rome II Regulation recital 14.
[29] Rome II Regulation, art 4(2), 4(3); ‘In transboundary pollution cases, the polluter should not get an opportunity to avoid the application of the lex loci. Especially when damage to real property arises, neither the application of the common habitual residence nor the general escape clause would justify a deviation from the lex loci’: Angelika Fuchs, ‘Article 7- Environmental Damage’ in Peter Huber (ed), Rome II Regulation Pocket Commentary (1st edn, Sellier European Law Publishers 2011) 202, 214.
[30] Fuchs (n 29) 202-203, 214.
[31] Proposal (n 6) 19.
[32] Consolidated Version of the Treaty on the Functioning of the European Union (n 3) art 11.
[33] Rome II Regulation art 7.
[34] Fuchs (n 29) 205.
[35] ibid.
[36] European Parliament, ‘Report on the Proposal for a Regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations (‘Rome II’)’; Jan von Hein , ‘Back To The Future – (Re-)Introducing The Principle Of Ubiquity For Business-Related Human Rights Claims’, (Conflict of Laws, 12 October 2020) https://conflictoflaws.net/2020/back-to-the-future-re-introducing-the-principle-of-ubiquity-for-business-related-human-rights-claims/ accessed 14 October 2022.
[37] Proposal (n 6), 23-24; Fuchs (n 29) 215; Christophe Bernasconi and Gerrit Betlem, ‘Cross-Border Pollution: Private International Law Analysis Of Administrative Authorisations As Regulatory Compliance Defence (A View From Europe)’ (2003) International Law: Revista Colombiana De Derecho Internacional 302, 307-308; Katia Fach Gomez, ‘The Law Applicable to Cross-Border Environmental Damage: From the European National Systems to Rome II‘, in Peter Sarcevic, Paul Volken, Andrea Bonomi (eds.), Yearbook of Private International Law (Volume VI, Otto Schmidt/De Gruyter 2004) 291, 298.
[38] ‘The theory of Dépeçage is a concept in private international law that refers to the process of cutting a case into individual issues whereby each issue is constrained to a different applicable choice-of-law analysis’: Sahar Karimi, ‘Application of the Theory of Dépeçage to Upstream Oil and Gas Contracts’ (Prism, University of Calgary 29 March 2018) https://prism.ucalgary.ca/bitstream/handle/1880/106483/ucalgary_2018_karimi_sahar.pdf?sequence=1&isAllowed=n> accessed December 27 2022; Symeon Symeonides, Issue-By-Issue Analysis And Dépeçage In Choice Of Law: Cause And Effect (University of Toledo Law Review, 18 November 2013) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2356657 accessed 14 October 2022 1, 6.
[39] Rome II Regulation art 3; Fuchs (n 29) 212.
[40] Rome II Regulation art 1(2)(f).
[41] Namely, the Paris Convention of 29 July 1960 and the Brussels Convention Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy (Brussels Supplementary Convention or BSC), the Vienna Convention of 21 May 1963, the Convention on Supplementary Compensation of 12 September 1997 and the Protocol of 21 September 1988; Proposal (n 6).
[42] Fuchs (n 29) 222; Convention on Third Party Liability in the Field of Nuclear Energy [1964] OECD/LEGAL/0038, (Paris Convention) art 13; Vienna Convention on Civil Liability for Nuclear Damage [1963] 1063 UNTS 265 (‘Vienna Convention’) art XII(1).
[43] Paris Convention (n 41) art 3, art 4; Vienna Convention (n 41) art IV (1).
[44] Preamble to the Vienna Convention (n 41).
[45] ‘Union policy on the environment shall aim at a high level of protection […]. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay’: Consolidated Version of the Treaty on the Functioning of the European Union (n 3) art 191(2).
[46] ibid.
[47] ibid.
[48] Gomez (n 37) 298.
[49] Fuchs (n 29) 206.
[50] Hugh Parker, ‘Approaches to environmental damage claims’ (Gard News, 1 May 2019) <https://www.gard.no/web/updates/content/53105/approaches-to-environmental-damage-claims> accessed 10 February 2023.
[51] Nathan Atkinson, ‘Do Corporations Profit from Breaking the Law? Evidence from Environmental Violations’ (June 25 2020) https://nathanatkinson.com/wp-content/uploads/2020/08/Atkinson-2020-Corporate-Environmental-Violations-1.pdf accessed 30 December 2022.
[52] Guinchard and Lamont-Black (n 5) 170.
[53] Fuchs (n 29) 217.
[54] ibid.
[55] Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives [2008] OJ L 312.
[56] European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies, Study on the Harmonisation of EU Environmental Law’ (February 2022) <https://www.europarl.europa.eu/RegData/etudes/STUD/2022/705033/IPOL_STU(2022)705033_EN.pdf>, accessed 30 December 2022, 76.
[57] Tolek Petch, ‘The Rome II Regulation: An Update’ (2006) 21(9) Journal of International Banking Law and Regulation 509, 511.
[58] Proposal (n 6) 19.
[59] Proposal (n 6) 5, 19; Alan E Boyle, ‘Global Environmental Liability: The Interplay Of National And International Law’ (2005) 17 Journal of Environmental Law, 3; Guinchard and Lamont-Black (n 5) 169.
[60] Consolidated Version of the Treaty on the Functioning of the European Union (n 3) art 191; Rome II Regulation art 2(2).
[61] Symeon Symeonides, ‘Rome II and Tort Conflicts: A Missed Opportunity’ (2008) 56(1) The American Journal of Comparative Law 173, 174.
[62] Proposal (n 6) 19-20; Uglješa Grušić, ‘International Environmental Litigation In EU Courts: A Regulatory Perspective’ (22 March 2016) 35 Yearbook of European Law, 46.
[63] Proposal (n 6) 19.
[64] Ualikhan Akhatov, Aidana Bekrutova, Akzada Madaliyeva, Shaimardan Sharipov, Dinara Tursynkulova, ‘Harmonization of Environmental Legislation’ (2018) 21 Journal of Legal, Ethical and Regulatory Issues.
[65] On the power of the deciding court to interpret foreign law and the principles justifying this practice, see Luis Arroyo Jiménez, ‘Effective Judicial Protection and Mutual Recognition in the European Administrative Space’ (2021) 22(3) German Law Journal 344, 361.
[66] The aforementioned competent court.
[67] Arroyo Jiménez (n 65) 360.
[68] Arroyo Jiménez (n 65) 361; Guinchard and Lamont-Black (n 5) 171.
[69] ibid; Gomez (n 37) 300.
[70] Guinchard and Lamont-Black (n 5) 171.
[71] ‘A useful distinction may be to look at the liability regime provided by the applicable law: is it fault-based or strict? In the event of strict liability, by hypothesis a foreign authorisation cannot influence the question of liability as such but only the level of damages awarded, since the behaviour of the polluter is irrelevant. Should the liability be fault-based, the applicable law may allow some leeway to consider the conduct of the polluter and thus the licence or compliance with regulatory standards, even where that is abroad (i.e. at the place of the event giving rise to the damage). This may mean that in a legal system where an authorisation has the effect of barring civil liability altogether, a claim will fail if the foreign licence is considered to be equivalent to a domestic licence, for example, because the same standards are adhered to’: Guinchard and Lamont-Black (n 5) 171.
[72] ibid.
[73] Case C-115/08 ČEZ [2009] ECR I-10265.
[74] ibid.
[75] Consolidated Version of the Treaty on the Functioning of the European Union (n 3) art 18.
[76] Rome II Regulation recital 3.
[77] Consolidated Version of the Treaty on the Functioning of the European Union (n 3) art 67(1); Consolidated Version of the Treaty on the European Union [2012] OJ C326/13, art 4.
[78] Rome II Regulation (n 2) art 17.
[79] Fuchs (n 29) 218.
[80] Ivo Bach, ‘Article 17- Rules of safety and conduct’ in Peter Huber (ed), Rome II Regulation Pocket Commentary (1st edn, Sellier European Law Publishers 2011) 365, 368.
[81] Rome II Regulation art 17.
[82] Study On The Rome II Regulation (EC) 864/2007 On The Law Applicable To Non-Contractual Obligations (Publications Office of the European Union 2021)(Study on the Rome II Regulation) https://op.europa.eu/en/publication-detail/-/publication/11043f63-200c-11ec-bd8e-01aa75ed71a1 accessed 23 September 2022, 90.
[83] Study on Rome II Regulation (n 82) 90.
[84] ibid.
Emmanouela Yiannoudakou
LLB (NKUA) ’23, Minor in Graphic Design (ACG) ’23